The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1887-04-28

were paid before they could proceed
against the assignee. There is no error
in the Judgment in favor of the appellee,
but we think the court erred in charging
the jury to find against appellants for the
sheriff's attorney fees. The sheriff may
recover fees when he has an indemnity
bond, if after judgment against him his
obligors fail to discharge the bond. Here
there has been no breach of theIbond, and
the finding of the attorney fees is error.
The Judgment is reversed and reformed
so as to give Everhart Judgment against
appellants for the amount of appellee's
judgment. Appellants will be adjudged
to pay one half the costs of this appeal,
and Everhart and his sureties the other
half
p. j. Willis & Bro vs.. j. G.. Whitsett
from Bell county. Opinion by Willie, CD.
Appellants, creditors of one Kellam
sold out an attachment against a stock of
goods III tine hands of appellee.
damage for the seizure and a
verdict of $2,5S3.91 was given
with interest at 8 per cent from date to
levy and judgment was entered for 10
per cent. interest. Appellee RENTS all in
terest over per cent; and agreed to re-
NIT all that accrued prior to January l,
1882, if this court so held.
Appellants claim that the court erred in
turning the case solely upon the question
as to whether or not the transfer from
Kellam to Whitsett was fraudulent when
they claimed there had been no transfer,
but the evidence all goes to show that
there had been no transfer and the court
did not err in throwing out an issue I'M
supported by evidence.
The complaint that the court erred in
charging the jury that, in order for ap-
pellants to get verdict their claim must
have exceeded the value of the goods, would
be good one if the facts in this case had
not shown that appellants claim was near
ly twice the value of the goods, and ap-
pellants were therefore not prejudiced.
The complaint that the court erred in
charging the jury that, in determining
what was valuable consideration
for appellee to give for goods, they
would inquire what was their
market value at the time of transfer,
because there was no evidence of their
value is not good, as it is presumed that
the goods, being in store, were worth,
marked on them.
The court erred in charging the jury
that they we're authorized to consider the
interest of the witness who testified in the
matter in controversy. The appellee
was the only witness VIII o testified that had
any interest in the controversy.
1t is not presumption of law that a
transfer is made with fraudulent intent
if the grantor at the time is indebted to
another party. In such cases much depends
upon the amount of Indebtedness and
other circumstances.
In this case the petition claimed inter
est from January l, 1882, and the verdict
was for interest from December 8, 1881;
the appellee could not recover more than
he claimed
The judgment is entered at 10 per cent.
instead of 8, which is an error.
The judgment will be reformed, so as to
allow appellee's interest on the principal
sum recovered at per cent. from Janu-
airy l. 1882, and to make the judgment
bear interest at per cent. from its rendi-
ton below, the appellees to pay costs of
this court. Thus reformed the Judgment
is affirmed.
s. A. Owens VS.. Missouri Pacific Railway
company; from McLennan county. Opin-
ion by Gaines Al. This was suit brought
by appellant to recover damages caused
by building an embaukment. The evil
dence is very conflicting, some of the
witnesses testifying that appellant should
have a large amount of damages, and
others that he should have none.
He got 800 and appealed. Appel
liant makes several assignments of error,
but none of them are we'll taken. The
court erred, however, in insisting upon a
verdict, as there had been a mistrial be-
fore, but to this action of the court no
exceptions we're taken. We find no error
in the Judgment, and it is affirmed.
T. o. Prather VS.. Henry Wilkens; from
Bosque county. Opinion by Gaines A.
J. The court erred in admitting testi-
mony as to contents of telegram; the tel
egram was the best evidence of its con-
tents. The court erred in charging the
jury to regard the conveyance as deed,
unless the preponderance of evidence
"clearly shows" it to be a mortgage.
From the evidence we cannot see any
thing to warrant the jury in finding that
Watson was authorized to consummate
the agreement, or that it had been rati-
fed. The Judgment is reversed and the
cause remanded.
COURT OF APPEALS.
John P. White, presiding Judge; Judges
James M. Hurt and Sam A. Wilson; W.
L.. Davidson, assistant attorney general;
James L. White, clerk; M. M. Johnson,
bailiff.
G. A. Jones VS.. R. R. Spann, from Dali
las county. Opinion by White, p. j.
Judgment was recovered by appellee in
a Justices court for $685. on March 28,
1885. On April APPELLANTS filed an APP
peal bond to county court There are
two endorsements on the bond made by
the justice, viz: first, "Filed 1886, H.
Schulz, j. p" and, second, "Approved
the within bond, III. Schulz" The first
endorsement evidently means fourth
month, third day, of the year 1885. There
is no date to the approval, and it Is pre-
sumed to be separate act
The justice did not file the transcript
original papers in the county court until
May 8, 1885, When these papers were
filed the May term of the county court
was in session, and had been for four
days, it being the first term of the court
after appeal was perfected. On October
IA, 1885, appellee filed motion to dis
miss the appeal; first, because the trans
cript, ETC., we're not filed at the proper
time in the court, nor on the first day of
the first term after trial of the case; sec